PEOPLE v. FORSYTHE (2018)

MEMORANDUM AND ORDER

Appeal from an order of the County Court of Albany County (Herrick, J.), entered June 16, 2015, which denied defendant's motion for resentencing pursuant to the Drug Law Reform Act of 2005.

In satisfaction of a two-count indictment, defendant pleaded guilty to one count of criminal possession of a controlled substance in the second degree, a class A–II felony, and, in January 2003, was sentenced to a prison term of three years to life.  According to the parties, defendant was released to parole supervision in August 2003 but subsequently violated the terms of his parole, resulting in his return to custody.  In June 2015, defense counsel filed a motion seeking to have defendant resentenced pursuant to the Drug Law Reform Act of 2005 (see L 2005, ch 643 [hereinafter the 2005 DLRA] ).  County Court denied the motion, noting that defendant had been released to parole supervision in May 2015 and, therefore, was ineligible for resentencing under the 2005 DLRA. This appeal by defendant followed.

We affirm.  “[O]nce a defendant has been released to parole supervision for a class A–II drug felony conviction, he or she no longer qualifies for 2005 DLRA relief for that particular conviction” (People v. Mills, 11 N.Y.3d 527, 537, 872 N.Y.S.2d 705, 901 N.E.2d 196 [2008];  accord People v. Harris, 153 A.D.3d 1092, 1093, 57 N.Y.S.3d 912 [2017];  People v. Horning, 143 A.D.3d 520, 520, 39 N.Y.S.3d 423 [2016], lv dismissed 28 N.Y.3d 1124, 51 N.Y.S.3d 21, 73 N.E.3d 361 [2016];  see People v. Christensen, 150 A.D.3d 1483, 1484, 52 N.Y.S.3d 234 [2017];  People v. Bustamante, 124 A.D.3d 1132, 1133, 2 N.Y.S.3d 691 [2015], lv denied 25 N.Y.3d 1070, 12 N.Y.S.3d 621, 34 N.E.3d 372 [2015] ).  Accordingly, inasmuch as defendant was released to parole supervision in May 2015, County Court properly denied his motion for resentencing under the 2005 DLRA (see People v. Christensen, 150 A.D.3d at 1484, 52 N.Y.S.3d 234;  People v. Bustamante, 124 A.D.3d at 1133, 2 N.Y.S.3d 691).  In this regard, defendant's reliance upon the Court of Appeals' decisions in People v. Brown, 25 N.Y.3d 247, 10 N.Y.S.3d 500, 32 N.E.3d 935 [2015] ), People v. Santiago, 17 N.Y.3d 246, 928 N.Y.S.2d 665, 952 N.E.2d 481 [2011] ) and People v. Paulin, 17 N.Y.3d 238, 929 N.Y.S.2d 36, 952 N.E.2d 1028 [2011] ) is misplaced as each of the cited cases involved defendants who were convicted of a class B felony drug offense and were seeking resentencing under the Drug Law Reform Act of 2009 (see L 2009, ch 56, as codified in CPL 440.46).  As defendant was convicted of a class A–II drug felony, his application for resentencing was properly brought, considered and rejected under the 2005 DLRA.

ORDERED that the order is affirmed.

Egan Jr., J.P., Clark, Mulvey, Rumsey and Pritzker, JJ., concur.